Relying on the Supreme Court's 2016 opinion in Campbell-Ewald, the United States District Court for the District of South Carolina ruled that a class action plaintiff need not file a "placeholder" motion to certify to avoid a defendant's attempt to "pick-off" the plaintiff and moot the class with a Rule 68 Offer of Judgment (OJ).
Plaintiff filed its putative class action complaint alleging violations of the Telephone Consumer Practices Act and immediately sought defendants' agreement not to serve an OJ before plaintiff had a chance to file a proper Rule 23 motion to certify. When defendants declined, plaintiff filed a generic motion to certify accompanied by a request for leave to file supplemental briefing in support of the motion after plaintiff conducted class discovery. That was just two weeks before the Supreme Court decided Campbell-Ewald, in which the Court held that an unaccepted OJ does not moot class claims even when no motion for certification is pending.
During the hearing on the "placeholder" motion, plaintiff argued that it filed the motion to avoid the consequences of an unaccepted OJ under "existing, somewhat confusing case law." For example, before Campbell-Ewald, several courts in the Fourth Circuit expressly allowed plaintiffs to rely on a pending placeholder motion to reject "pick-off" OJs. Other courts in the Fourth Circuit had held that a placeholder motion was unnecessary because the eventually filed motion for class certification will relate back to the filing of the original complaint. The Seventh Circuit had expressly blessed the use of "placeholder" motions filed along with the complaint as a "simple solution" to the pick-off problem presented by a defendant's pre-certification OJ.
Relying on Campbell-Ewald, the South Carolina court stated that a placeholder motion is unnecessary to shield the class action from being mooted by an unaccepted OJ. The court also cited opinions from district courts in Maryland, New Jersey, and Florida holding that the placeholder certification motion practice unnecessarily burdens the court by keeping an obviously premature motion on the docket for an unspecified period of time. Accordingly, the court denied plaintiff's motion for class certification without prejudice and with leave to refile after plaintiff had conducted the discovery necessary to bring a fully briefed motion.
Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc., 3:15-05061 (July 12, 2016).
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